Bedel Blog

Dec 3, 2018

Role Reversal: Becoming Legal Guardian for Elderly Parents

Role Reversal: Becoming Legal Guardian for Elderly Parents

Are you concerned about your parents’ decision-making abilities and safety as they age? If the situation endangers them or others, a legal guardianship may be required. Your parents cared for you when you were young. Now, it may be your turn.

In many cases, durable power of attorney and health-care power of attorney documents are sufficient to assist with maintaining the well-being of your parents. However, sometimes you need to take extra steps and obtain guardianship to keep your parent(s) protected.

Here’s how the process might work in a simple scenario. Mike was concerned about his mom, Lucille. His phone conversations with her were scattered and disjointed. Then he learned she was making significant withdrawals from her checking account. Medical testing confirmed one of Mike’s worst fears – Lucille had Alzheimer’s disease. He needed to do something to make sure she was physically and financially safe.

Locating Documents

Mike’s first step was to look for his mom’s legal documents. About five years prior, while she was still competent, Lucille mentioned she had updated her estate planning documents. So Mike began by looking for her durable power of attorney and health-care power of attorney forms. The durable power of attorney would allow Mike to start managing his mom’s financial affairs, i.e. pay bills, manage investments, and sell property. The second document, the health-care power of attorney, would allow him to make medical care decisions on her behalf.

Mike found both of the documents, which, fortunately, were appropriately drafted. Armed with these documents, he could take the steps necessary to keep his mom safe. He was prepared to start managing her finances and find her a nice place to live. But Lucille didn’t see things his way. She was in denial and uncooperative. Mike needed to find an alternative and consulted an attorney about legal guardianship of elderly parents.

Parental Guardianship

Becoming the guardian of your parent, or an elder guardian to anyone else for that matter, is a serious decision that shouldn’t be made lightly. It significantly affects a person’s individual rights and freedoms. Moreover, you, as the guardian, are legally responsible for that person and legally obligated to place his/her best interests above your own.

Mike’s first step toward guardianship was to petition the court to have Lucille declared legally incompetent. Mike had to document all of Lucille’s actions that led him to believe that his mom was no longer competent and give that information to the judge. The judge also wanted expert medical opinions to further prove that Lucille was no longer capable of managing her affairs. During the hearing, Lucille was represented by legal council to ensure due process.

All these steps were necessary, because taking away someone’s liberty is a serious step. The judge wanted substantial proof that guardianship was necessary. It was also the judge’s duty to ensure that Lucille was not being abused by Mike, her own family member.

Fortunately, the family was in agreement that Mike should become Lucille’s guardian. Even so, the judge wanted to determine that he was the best choice, so the court reviewed Mike’s history, too. 

The Alzheimer’s Foundation notes: “The court scrutinizes all of the actions of the guardian, including the management of the individual’s personal financial affairs, and decisions regarding medical treatments and long-term care. Some states even require a potential guardian to take a court-approved class in order to learn about their responsibilities.”

The judge determined that Lucille needed a guardian and appointed Mike in that role. Lucille is now a ward of the court and Mike is legally responsible and accountable to the court for everything he does on her behalf. Mike had to find living arrangements for his mom, set up new financial accounts, and begin managing her financial affairs. He’s still accountable to the court for everything he does on his mother’s behalf. That means he must keep receipts for all financial transactions he makes for Lucille’s benefit.

Mike and Lucille’s case was a simple scenario. Other variables and situations could make it a lengthier, more complicated process.

Summary

Many of us have experienced, or will in the future, the issue of role reversal in the parent-child relationship. It’s never an easy process and having to pursue legal guardianship can be especially difficult. Hopefully, you won’t need to pursue that path to keep your loved one safe, but it’s good to know this option is available if you need it.

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